Lee v Hearn [2005] VSCA 127

"(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

...

(3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

(a) his or her will (if any); or

(b) the operation of the provisions of Part I, Division 6; or

(c) both the will and the operation of the provisions -

does not make adequate provision for the proper maintenance and support of the person.

(4) The Court in determining -

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

(i) the deceased's will; or

(ii) the operation of the provisions of Part I, Division 6; or

(iii) both the will and the operation of the provisions-

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; and

(d) any other matter related to an application for an order under sub-section (1) -

must have regard to -

[(e) to (o) - 11 specified matters];

(p) any other matter the Court considers relevant." (Emphasis added.)

3 The relevance and weight of the matters referred to in s.91(4)(e) to (o) will vary according to which of the questions in s.91(4)(a) to (d) the Court is determining. I shall concentrate on the threshold question whether the deceased had "responsibility to make provision" for the applicant.[3] That question is obviously unaffected by whether the deceased died testate or intestate.[4]

4 I begin with a recent and, in my opinion, important observation by Nettle, J.A. in Blair v. Blair[5]. His Honour said[6]:

"The court is bound in answering each of those questions to have regard to the matters mentioned in ss.91(4)(e) to (o) and, pursuant to s. 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in ss.91(4)(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant."[7] (Emphasis added.)

A similar point was made in Grey v. Harrison when I said, in relation to the previous legislation, that the touchstone of what a wise and just testator would have thought to be his or her moral duty "supplies the norm that the legislature left unexpressed".[8]

5 It is important to focus on the words of the legislation.[9] The question to be determined, in the words of the statute, is whether or not the deceased had responsibility to make provision for the applicant. That must mean a legal or moral responsibility, in the sense in which "moral" has been explained in the authorities, for what other kind of responsibility is there? Our duty to attend to the language of the statute is one of the reasons we cannot derive assistance from Vigolo v. Bostin.[10] The Western Australian legislation prescribes the persons entitled to claim, all of whom are partners or former partners or relatives,[11] and does not use the word "responsible" or "responsibility" or any equivalent expression.[12]

6 More fundamentally, if the deceased had neither a legal nor a moral responsibility to make provision for an applicant, why would Parliament abridge his or her testamentary freedom and why would a court exercise its discretion in favour of the applicant? As I said in Grey v. Harrison[13]:

"[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s.91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of 'proper' maintenance and support but also, and more fundamentally, from those considerations."

The real issues are not morality as such, but personal autonomy and individual freedom.[14]

7 In MacEwan Shaw v. Shaw[15] Dodds-Streeton, J. had to consider whether the amendments made by the Wills Act 1997 required or justified a different approach from that in Collicoat v. McMillan and Grey v. Harrison. Her Honour concluded that the amendments did not have that effect. On the contrary, she continued[16]:

"[t]he retention of the traditional words 'proper maintenance and support', the express reference to the responsibility of the testator in the legislation and the acknowledgment in the Second Reading Speech that the remedial legislation was directed at facilitating applications by those who have 'moral claims', reinforce rather than attenuate the application of the traditional concepts of moral duty and the wise and just testator."

Another reinforcing factor is that, in Victoria, any person at all may now apply for provision. It cannot be said, as it can in some other jurisdictions, that the legislature has prescribed or even indicated the kinds of person for whom the deceased is likely to have had responsibility to make provision.[17]

8 I referred earlier to moral responsibility in the sense in which "moral" has been explained in the authorities. It is not a static or idiosyncratic concept. In Grey v. Harrison after saying that the authorities so strongly favoured the criterion of what a wise and just testator would consider his or her moral duty that we were not free to jettison it, I continued[18]:

"That is not to say that either the denotation of those words or the content of wisdom, justice and moral duty do not change with time or respond to community standards. See, for example, Permanent Trustee Co. Ltd. v. Fraser at 35-6 per Handley J.A. That is a point that is particularly important to remember when reading authorities that reflect outdated stereotypes: cf. Singer v. Berghouse at 220-1 per Toohey J."

It is one thing to say that the prejudices of a 19th century paterfamilias are an unsafe guide or that courts should no longer discriminate against adult sons, rather than dealing with the claims of adult children according to their individual circumstances. It is another thing altogether to say that "wisdom", "justice" or "morality" forms no part of contemporary Australian standards or fails to supply the norm that the legislature has indicated by the words "responsibility to make provision".

Postscript

9 I wrote [2] - [8] above, including the accompanying footnotes, before the High Court gave judgment in Vigolo v. Bostin.[19] As I said in [5], the Victorian legislation is now materially different from that in Western Australia, but I am reinforced in my conclusion by the judgments of Gleeson, C.J. and Callinan and Heydon, JJ. Gummow and Hayne, JJ. took a different view in that case, but their Honours would agree that we should attend to the language that the Victorian Parliament has used.[20]

Introduction

10 This is an appeal by the plaintiff below from a judgment[21] given in the Trial Division on 31 May 2002 by which his proceeding under Part IV of the Administration and Probate Act 1958 ("the Act") claiming provision out of the estate of Olga Agnes Hetherington deceased was dismissed and costs as between party and party were awarded against him in favour of the respondent as defendant.

11 The deceased died on 25 June 2000 at the age of 83 years. She left a will dated 1 June 1988 and a codicil dated 23 March 1993. Probate of the will was granted to the respondent as an executor appointed by it, leave being reserved to the other executor

appointed to come in at any time and prove. The value of the deceased's estate totalled, as at 1 March 2002, some $2,270,000 less costs then estimated at $35,000. By her will the deceased left pecuniary legacies of $20,000 to each of five persons, including the appellant, with the balance of the estate to form the Urquhart Charitable Fund in memory of William Frederick Urquhart and the income to be distributed annually to certain charitable or public benevolent institutions in Victoria.

12 At trial the appellant alleged that the deceased had a responsibility to make further provision for him in her will by reason of his relationship with her, her assumption of responsibility to support him, his contribution to her welfare, his own financial needs and his poor employment prospects and bad health. He claimed that the deceased was a heavy drinker and was dependent on him physically. In his proceeding the appellant initially sought the unit at Port Merion on the Queensland Gold Coast left by the deceased, together with an appropriate sum to maintain him. The claim was modified during the trial to an amount commensurate with the value of an interest for the appellant's life in the Port Merion unit.

13 The respondent alleged that the relationship between the appellant and the deceased was one of friendship and mutual convenience and that the deceased did not assume or acknowledge a responsibility to support the appellant. His contributions to the deceased's welfare were in exchange for contributions she made for his welfare. The appellant's financial needs and poor prospects were not attributable to any demand or request by the deceased. The respondent contested the allegation that the deceased was a heavy drinker and therefore dependent on the appellant. The respondent argued that the circumstances were not such that the deceased had a responsibility to make further provision for him in her will.

14 The trial judge dismissed the appellant's claim, holding that he was required, but had failed, to make out a moral duty owed by the deceased to him and finding that he had "failed to satisfy each of the relevant criteria" in s.91(4)(e) to (p)[22]. The appellant now challenges her Honour's decision that he had not demonstrated that the deceased had a responsibility to make further provision in her will for him.

15 The appellant's claim below was supported by two affidavits sworn by him, as well as two affidavits sworn by Marjorie Edmunds, a friend of the deceased at Port Merion, and one sworn by each of the following: Warren Humphries, the body corporate manager of the Port Merion Apartments from 1989 to 1992; John Edmunds, the son of Marjorie Edmunds; Tony Bose, a medical practitioner of whom the appellant was a patient, and a real estate agent and a valuer. The respondent swore two affidavits in opposition and filed affidavits sworn by Betty Laver, a cousin and life-time friend of the deceased who lived in Melbourne; Ranald Hugh McCowan, who acted as solicitor for the deceased at the time of her purchase of her unit at Port Merion; and Craig Hendricks, a first cousin once removed of the deceased. Besides the appellant the other legatees under the deceased's will were Mrs. Laver, Mrs. Edmunds, Mr. Hendricks and his sister.

The undisputed facts

16 The following facts are undisputed. The appellant, who was born in Malaysia in 1952, first met the deceased in 1976 through a mutual friend, Walter Urquhart Junior. The appellant had become a friend of the latter as a result of befriending his father, Walter Urquhart Senior, when the appellant was a student of graphic design in Adelaide in the mid-1970's. In 1983 the appellant moved to live on the Gold Coast and rented a flat at Mermaid Beach. Walter Urquhart Junior died at the Gold Coast in 1987. The deceased was the principal beneficiary, to the extent of $1 million, under his will. After his death the appellant became a friend of the deceased. Either in accordance with Mr. Urquhart's wishes or from her own acknowledgment of friendship with the appellant, the deceased gave him $10,000 from the estate she inherited. In 1989 she purchased the unit at Port Merion and asked the appellant to live in it. Thereafter she lived either in Melbourne or in Port Merion until about 1998. She did not visit Port Merion in 1999. As stated, she died in 2000. The appellant had lived rent-free continuously in the unit from 1989 until the date of judgment. He had had only part-time jobs since 1989. He did not claim that the deceased demanded that he not work. The real estate agent's evidence established the rental value of the unit at $320 per week and a 25-year interest in the unit was valued by the valuer at $292,604. That evidence was not contested by the respondent. There was no evidence of the appellant's life expectancy.

Issues and findings at trial

17 I turn to the factual issues in dispute at the trial and her Honour's findings as to them.

(a) The nature of the relationship between the appellant and the deceased

18 The appellant claimed that he had a very close relationship with the deceased. This was supported by Humphries, who said that they were like mother and son, and by Mrs. Edmunds, who stated that the appellant was "like family" to the deceased. On the other hand, the appellant did not maintain great frequency of contact with the deceased when she was in Melbourne. Further, the respondent stated that the deceased mentioned the appellant to him only once in the entire period during which she was his client, which was from 1987 to her death. He said that he did not know until after her death that the appellant was living in the Port Merion unit. Hendricks stated that the deceased hardly mentioned the appellant. The appellant explained these statements by saying that the deceased did not want her solicitors to know much about her private life and that she was a very private person.

19 The appellant said that the deceased spent six to nine months every year at Port Merion and every Christmas for approximately two weeks. That evidence was supported by Humphries. The respondent, however, led evidence, including dates of travel in and out of Australia shown in the deceased's passport, that demonstrated that the deceased usually spent no more than four to five months in the years between 1989 and 1998 at Port Merion and did not go to Port Merion every Christmas. This was supported by Mrs. Laver. Her Honour accepted the last-mentioned evidence and said that the appellant's statements were shown to be quite exaggerated. Between 1990 and 1997 the most time that the deceased spent at the Port Merion property was about four months, the shortest period about six weeks. She did not stay at the Port Merion unit during 1994 nor in the last two and a half years of her life. Her Honour did not accept the appellant's claim that the deceased often spent Christmas with him, finding that she spent some Christmas periods in Melbourne, went on a cruise to New Zealand at Christmas in a particular year and in 1997 stayed with her cousins, the Hendricks, in Sydney.

20 Her Honour expressed her views on the relationship between the appellant and the deceased in her discussion of the first of the considerations enumerated in s.91(4) of the Act, namely, paragraph (e)[23]. Noting that no family relationship existed between them but that they had been friends for about 25 years, her Honour said that it was difficult to discern the depth of their friendship. The appellant was one of only five beneficiaries under the deceased's will and the deceased had allowed him to live in her property rent-free. On the one hand, it seemed that she had done so out of an acknowledgment of his loyalty and her concern for him. On the other hand the arrangement seemed one of mutual convenience which she saw as suiting her financial and real estate interests. The varied extent to which the relationship was recognised by others (as stated earlier) attested to its ambivalent nature. Her Honour concluded that "the relationship was one of friendship but no more". She did not accept that the appellant was like a son to the deceased.

(b) The deceased's drinking habits

21 The appellant said that after the death of Mr. Urquhart Junior the deceased developed a drinking problem. When she was intoxicated, she would require assistance and care and would often become incontinent. Humphries, Mrs. Edmunds and John Edmunds supported the appellant's assertions. The respondent contested these assertions. He stated that when he had attended the deceased at her home in a professional capacity he had never seen her affected by alcohol.

22 Her Honour noted that in the first affidavit sworn by the appellant there was no mention of the deceased's drinking and that the allegation that she was a heavy drinker, or at least a woman who because of her slight build and age was easily affected by even a light or moderate consumption of alcohol, had, despite professed reluctance to speak on the matter, figured large in the appellant's case before her, it being his case that his role of care was made burdensome because her drinking necessitated that he bathe her and assist her to the toilet.

23 Her Honour summarised the relevant evidence as part of her review of the evidence of each party. After summarising the evidence of Mrs. Edmunds and her son on the topic her Honour said that she accepted that the deceased sometimes showed the effects of alcohol consumption at social functions over the years, but she did not accept that the evidence was sufficient to make out a claim of persistent heavy drinking and consequential dependence. Nor did the evidence make out the claim that the appellant's role of alleged carer was more onerous as a consequence of her drinking. Under the heading of the deceased's drinking activities her Honour accepted that from time to time the deceased drank alcohol at social functions and also that on some occasions, of which few were identified, she might have become intoxicated quickly and suffered physically as a result, might have required assistance from those with her, in some instances the appellant and in others a member of the Edmunds family. Her Honour could not be satisfied on the evidence that there were other than a few occasions. There were probably not more than ten episodes. Significantly, the deceased was able to live in Melbourne alone until almost the end of her life without assistance. She did not require a resident carer. On the evidence her Honour rejected any suggestion that she suffered from an alcohol-based problem such that she was dependent on the appellant.

(c) Whether the deceased was dependent upon the appellant

24 The appellant stated that the deceased used to insist that he be available to assist her. That evidence was supported by Mrs. Edmunds. The appellant claimed that the deceased was dependent upon him, that he helped her, cooking for her, driving her around, assisting with the shopping, bathing her and assisting her to visit the toilet. He said that he was at her "beck and call". This evidence was supported by Humphries.

25 The respondent said that the deceased was very much able to look after herself so far as her normal living requirements were concerned until only shortly before her death. This was supported by Mrs. Laver from her observations during a visit in 1995 to the unit for one week and her knowledge of the deceased's life in Melbourne over the entire period. Hendricks stated that the deceased was a strong and independent person right up to the last months of her life. The appellant said that Mrs. Laver received a false impression of life in the unit because he had been specifically asked by the deceased to leave her and Mrs. Laver to themselves during the latter's visit in 1995.

26 Her Honour's findings on this topic are part of her findings on a group of associated topics, which I defer stating for the time being.

(d) Contributions by the appellant to the deceased's welfare; whether he was more than a caretaker; whether she maintained him

27 The appellant said that he helped the deceased purchase and "co-ordinated" the management of her properties in Queensland. However, the respondent stated that his firm managed the Port Merion unit and that managing agents managed the other properties, and in cross-examination the appellant accepted that all he did amounted to re-directing mail and attending body corporate meetings. The appellant stated that he paid expensive accounts for the deceased's telephone calls while at the unit. Mrs. Laver contradicted this. In cross-examination the appellant gave inconsistent evidence. He said that the deceased tended to use the public telephone to call him. Edmunds said in cross-examination that the deceased preferred to use public telephones.

28 The deceased described the appellant as a caretaker to McCowan and in cross-examination the appellant agreed that that was not a misleading statement. In 1998 the deceased told Mrs. Laver that she was contemplating selling the unit and that the appellant was "only looking after it until I decide what I am going to do with it". She did not tell the appellant that she was thinking of selling the unit. He found out through Mrs. Edmunds. In 2000 the deceased, just before she died, told Mrs. Edmunds that she did not know what she was going to do with the unit as she did not want the money. She indicated to John Edmunds that the presence of the appellant in the unit did not "free her up" as much as she would like so far as having real estate interests that were ready to be sold at short notice was concerned.

29 The appellant agreed in cross-examination that, essentially, he supported himself. Mrs. Laver stated that there was nothing she observed to suggest that he was dependent on the deceased or was being maintained by her. The appellant said that the deceased paid at restaurants most of the time. In cross-examination he said, "Well, she was looking after me too and I was looking after her, it works both ways."

30 With regard to the topics dealt with under this heading (d) and under heading (c), her Honour stated that she was not satisfied that the deceased was dependent on the appellant or, more importantly, that the roles were reversed. At most, the appellant was a caretaker permitted by the deceased to live rent-free in the unit in return for his caretaking duties. The arrangement was one that was convenient and financially advantageous to the deceased. The unit was occupied for security purposes and maintained and, further, recurrent accounts such as electricity and telephone were paid by the appellant. "In my view," her Honour said, "the arrangement between the appellant and the deceased was based on friendship and convenience and no more. There was no obligation or duty recognised by the deceased. In addition, none was owed."

31 Besides the foregoing, in the course of her review later of the considerations set out in s.91(4), her Honour said with reference to paragraph (k) (which concerned any contribution, not for adequate consideration, of the applicant to the building up of the estate or to the welfare of the deceased) that the appellant's evidence overstated the amount of time the deceased spent with him and overstated the problematic nature of her drinking habits. Her Honour found that the appellant undertook the functions of a caretaker when she was not resident at the Port Merion unit and that when she was resident he undertook domestic tasks and did some driving. "However, these services were well and truly compensated by the rent-free accommodation [the appellant] enjoyed." In relation to the consideration in paragraph (m) (which concerned whether the applicant was being maintained by the deceased either wholly or partly and the extent to which and basis on which the deceased had assumed that responsibility) her Honour stated that she accepted that the notion of being maintained was not strictly financial but encompassed any condition whereby one person relied on another for the provision of his or her needs. She considered that the notion of being "partly maintained" was a rejection of a requirement of a relationship characterised by significant financial or emotional inequality. Caution, however, needed to be exercised lest any situation of co-operative living be seen as one of partial maintenance. In this case the judge was satisfied that the appellant was not being maintained wholly or partly by the deceased. He lived rent-free in her property in exchange for performing the services of a caretaker. Throughout the period he supported himself and paid his own bills. Nothing the deceased said or did could be taken as an assumption of the responsibility to maintain the appellant. The $10,000 given to him out of the estate of Walter Urquhart Junior was a once-only gift signifying gratitude but no continuing commitment to provide for or support him. The question the deceased asked the appellant, "What will happen to you when I'm gone?", whilst signifying her concern for his well-being, indicated that she had no intention of providing for his future. Finally in this area, her Honour said, the appellant's case had been based in the main on his claim to have assumed the role of carer for the deceased and not on her supporting him. However, a moral obligation to provide based on an applicant's being maintained by or dependent upon the deceased was, as Mahoney, J.A. pointed out in Churton v. Christian[24], was not one where the deceased owed the appellant a debt of moral gratitude, rather it was the reverse.

(e) The effect of certain statements made by the deceased

32 The appellant claimed that the deceased made statements to him which led him to believe that she would support him and not leave him without a roof over his head. He said that she told him that he did not have to go out and be "sold for a pup". Mrs. Laver said that she had never heard the deceased use the latter expression. With reference to the appellant the deceased in a letter (Exhibit "ME-1") that was undated but was written in or about January 2000 stated to Mrs. Edmunds:

"I don't think I've got a hope in hell of making it up to the Coast again and I don't feel like turfing Bobby out. He has been a very loyal and honest friend and I know he is not strong or well, also I feel safer with somebody in the place."

In the letter she instructed Mrs. Edmunds to show it to the appellant and to wish him happy Christmas. Mrs. Edmunds stated that on many occasions over the years she and the deceased had discussed Walter Urquhart and how she had inherited the appellant from him, together with the obligation to look after him. John Edmunds said that she had told him that, although the appellant was a problem, she would never get rid of him and that he would always be there for her.

33 Her Honour expressed the view that the statements of the deceased were of no consequence. They were insufficient to establish any obligation or duty or acknowledgement thereof owed by the deceased to the appellant. Indeed, her Honour accepted that the deceased contemplated selling the unit in 1998. The appellant was no more than a caretaker. When dealing later with the consideration set out in paragraph (f) of s.91(4) (which concerned "any obligations or responsibilities" of the deceased to the applicant amongst others), her Honour said that statements made to the appellant by the deceased to the effect that he should regard[25] the Port Merion unit as his home could not be taken as conferring upon him a proprietary interest in the unit. Such statements were no more than reassurances to a friend that for the present he need not worry about a roof over his head. Moreover, statements such as "home, sweet home" after returning from a drive did not even import that meaning, but were pleasantries to which no legal or moral obligation could possibly be attached.

(f) Whether the appellant suffered a detriment because of his care for the deceased

34 The appellant said that he was unable to hold down full employment because of his obligation to look after the deceased, although he stated in his affidavit, and confirmed in cross-examination, that she did not demand that he not work. In cross-examination he said with reference to his employment prospects that he was now "considered scrap".

35 As appears under heading (g), which follows, her Honour found that the explanation for these employment-related complaints lay with the appellant himself.

(g) The appellant's health

36 The appellant said that he had suffered from diabetes for four years and been unable to work to his full capacity. Dr. Bose said that the plaintiff had been treated for diabetes for one year and that it affected him to the extent that it reduced his work capacity and life expectancy.

37 Her Honour stated with reference to paragraph (i) of s.91(4) (which concerned, in part, any physical or mental disability of any applicant) that the medical evidence allowed no finding to be made as to the extent of the impairment. There was no satisfactory evidence establishing that the appellant was incapacitated for work or that he had been so incapacitated or suffering from such ill-health during the lifetime of the deceased that she knew or ought to have known that he was dependent upon her. Her Honour accepted generally that the appellant did not enjoy robust health but found that his inability to hold down full-time employment had been more the result of his failure to keep abreast of developments in his chosen field than a consequence of ill health. She did accept that at his age of 50 his employment prospects were diminished. In dealing with paragraph (h) of s.91(4) (which concerned the financial resources (including earning capacity) and the financial needs of the applicant) her Honour found that the appellant's financial position was poor. He had some personal debt and no savings and, as mentioned, had not held down full-time employment for many years. Her Honour accepted that it would be extremely difficult for him to obtain well remunerated employment in the future, so that his financial prospects in the foreseeable future were poor.

Other matters

38 It is convenient to note findings by her Honour on other paragraphs of s.91(4). She accepted for the purposes of paragraph (g) that the estate was a large one and subject to no liabilities except the costs of the proceeding. Under paragraph (1) (which concerned any benefits previously given by the deceased to any applicant or beneficiary), her Honour said that, whether the deceased gave the appellant $10,000 at the urging of Mr. Urquhart Junior or at her own volition, she was under no obligation to do so. It was a gift and no more. Within paragraph (n) there was no other person liable to maintain the appellant. His family in Malaysia had apparently disowned him. Under paragraph (o) (which concerned the character and conduct of the applicant) her Honour said that the appellant seemed of good character although prone to exaggeration in his evidence; that it was unfortunate that he had placed himself in the situation where at the age of 50 he possibly faced a precarious future; but that it had been his own poor choices and in particular what could only be described as his servile tendency to rely on the largesse of others that had left him so exposed. Finally, it may be noted that her Honour began her consideration of paragraph (f) abovementioned with the significant statement that the deceased had no legal, moral or financial obligation to the appellant or any other person.

Issues on appeal

39 In opening the appeal Mr. Gillies stated that he would deal with five matters. They were:

(a) the relationship between the deceased and the appellant;

(b) that the deceased assumed obligations to the appellant;

(c) that the fact of maintenance raised a presumption of obligation;

(d) if the foregoing be correct, the appropriate disposition is a life interest in the Port Merion unit to the appellant; and

(e) whether the concept of breach of moral duty was material.

In reply Mr. Gillies explained that he had focussed his attack upon the considerations in paragraphs (e), (f) and (m) of s.91(4). It is convenient to deal with the five matters in the order in which they were argued for the appellant.

The relationship between the deceased and the appellant

40 It was pointed out that her Honour had not accepted that the relationship between the deceased and the appellant was like that between a mother and her son, yet, it was submitted, her Honour had accepted that some witnesses said that the relationship was like that. It was submitted that her Honour's conclusion that the relationship was one of friendship only and not that of mother and son flew in the face of the evidence of Mrs. Edmunds and John Edmunds when her Honour had not disbelieved them or impliedly accepted the respondent's evidence. It was an error to find that the relationship was one of friendship only without disbelieving the evidence to the contrary. The right finding was between the two extremes. Finally, the evidence of the respondent and Hendricks was acknowledged along with the evidence that there was little contact between the appellant and the deceased when the latter was in Melbourne, but it was said that the observations of the defence witnesses only went so far. They did not say that the appellant's witnesses were wrong.

41 As was emphasised for the respondent, the evidence given on both sides on this question was evidence of the impressions of the respective witnesses. With regard to the appellant's evidence, her Honour assessed his credibility and was unimpressed by his exaggerations. Since her Honour was concerned with impressions, it may not be right to look for express or implied indications of disbelief of Mrs. Edmunds and John Edmunds, but the correct interpretation of her Honour's judgment is - and this is patent - that the judge did not accept the view or impression to which they deposed. Her Honour did not commit the error suggested for the appellant. Under s.91(4)(e) her Honour was required to have regard to the nature of the relationship. Her Honour's conclusion as to that is not a finding of primary fact but an assessment or characterisation. The evidence set out earlier tends to support her Honour's conclusion that the deceased and the appellant were merely good friends. At any rate the appellant has not persuaded me that her Honour erred in her assessment or characterisation.

Whether the deceased assumed obligations to the appellant

42 Mr. Gillies placed particular reliance upon Exhibit "ME-1", the relevant parts of which have been set out or summarised earlier. The letter is not referred to in her Honour's reasons and it was submitted that her Honour had overlooked it. The statement in it that the deceased did not feel like "turfing" Bobby out showed, it was said, that she did not want to do so, and she did not do so. The letter was, it was submitted for the appellant, consistent with various statements of the deceased sworn to and, together with them, was consistent with the deceased's accepting an obligation to maintain the appellant.

43 The letter to Mrs. Edmunds relied on does not show the assumption by the deceased of an obligation to maintain the appellant, whom, incidentally, she describes as a "friend" rather than in terms of family membership. First, its emphasis is on action or inaction while the author remains alive. Secondly, its language is that of self-interest. She felt safer with somebody in the unit. If she sold she would lose $100,000. It may be that she would have sold if she could have done so at a profit. Thirdly, and consistently with the self-interested nature of the letter, in 1998 the deceased told Mrs. Laver that she was thinking of selling the unit, but she did not herself tell the appellant that. That is, the occupation by the appellant and what he did for the deceased would not have been a bar to her selling. Nor indeed, in the mind of the deceased, did the subject require discussion with him. That shows that she did not consider herself under any obligation to him. Leaving the letter aside, it is true that the appellant deposed to statements by the deceased to him that he would always have a roof over his head, but it was open to her Honour, I consider, to treat such statements as inconsequential because they did not amount to an assumption of responsibility to the appellant, lacking a promissory nature and being open to be understood as concerned only with the then present time.

44 So far as the appellant suggested that the purchase of the Port Merion unit was done at the suggestion of Mr. Urquhart Junior[26] or was a continuation of the appellant's relationship with him, Mr. Urquhart had not been providing accommodation to the appellant and the evidence of Mr. McCowan established that the deceased bought the unit for her own purposes, namely, in order that she could leave Melbourne during the winter and live on the Gold Coast. Again, she had only her interests in mind.

45 Accordingly, her Honour did not err in declining to find that the deceased assumed an obligation to the appellant to maintain him.

Whether the (alleged) fact of maintenance raises a presumption of obligation to the appellant

46 It was submitted for the appellant that the fact of maintenance raised a presumption of an assumption by the deceased of responsibility for the appellant: there was an acceptance of responsibility by the provision of rent-free accommodation to the appellant. Basically they shared expenses and looked after each other. The strongest fact was that the appellant was in occupation. Reliance was placed on statements in the decisions of the English Court of Appeal in Jolley v. Iliffe[27] and in In re B, decd.[28], which, though cited to her Honour, are not mentioned in her judgment. It was said that her Honour had failed to deal with partial maintenance by the deceased which made the appellant dependent.

47 There are two difficulties with this argument. First, it proceeds on a false premiss. Her Honour was satisfied that the appellant was not being maintained, wholly or partly, by the deceased: he lived rent-free in the unit in exchange for performing the services of a caretaker. Albeit that those services were "well and truly compensated" by the rent-free accommodation, the appellant's caretaking was of considerable assistance to the deceased, securing her unit, affording her flexibility and possibly saving her stamp duty, and it was therefore in her interests, as well as his, that he should have the benefit of rent-free accommodation. For the reasons given above in rejecting the appellant's second point, I am not persuaded that the deceased assumed a responsibility for, or to maintain, the appellant, nor am I persuaded by any other arguments for the appellant that her Honour's conclusions on maintenance and dependency were erroneous.

48 It was contended in particular that it was not open to her Honour to arrive at the conclusion that the appellant was not being at least partly maintained by the deceased because his caretaking services were of much less value than the rent-free accommodation. But the Act (unlike the English Act) does not require an exact pecuniary balancing. The correct analysis is that there was an arrangement convenient to both parties that involved substantial reciprocal obligations.

49 Secondly, the English cases are distinguishable and afford no assistance here. It is true that in Jolley v. Iliffe Stephenson, L.J. expressed the view[29] that the bare fact of maintenance raised a presumption that responsibility for it had been assumed and that appears to have been accepted in In re B, decd.[30]. But those cases turn very largely on a provision which has no counterpart in s.91 of the Act.[31] Since her Honour, correctly in my view, found that the appellant was not being wholly or partly maintained by the deceased at the time of her death and since our Act has no equivalent to the English s.1(3), the English cases were inapplicable and her Honour was free to disregard them.

The appropriate disposition

50 This point was advanced on the assumption that all or at least some of the preceding points had succeeded. My estimation has been that, individually and collectively, they fail, so that, on the appellant's case as argued, no disposition in his favour falls to be made.

Moral duty

51 Her Honour reviewed the history and interpretation of the Victorian legislation and the interpretation of the current New South Wales legislation on the topic and concluded that the proper approach to the new Victorian legislation remained unchanged from that described by Ormiston, J. in Collicoat v. McMillan[32] and that the Parliament did not intend to constrain the freedom of testation unless the deceased breached a moral duty owed to the applicant. As already stated, her Honour held that the appellant had failed to make out a moral duty owed by the deceased to him.

52 It was submitted for the appellant that her Honour was wrong to say that the concept of the "common law" duty to provide still permeated the Act after "codification". Whilst there was much force in what Nettle, J.A. had said in Blair v. Blair[33] as to having regard pursuant to s.91(4)(p) to any other matter considered relevant, the remainder of the principal paragraph in his Honour's reasons was, as I understood the argument, said not to be an appropriate way of dealing with moral duty. It was submitted in the appellant's written outline of argument that the obiter dictum of three of the five justices of the High Court in Singer v. Berghouse[34] was persuasive and that, given what was said to be the exhaustive list of statutory criteria to which the court must now have regard when determining the threshold question, it was neither necessary nor helpful for a primary judge to refer to the deceased's moral duty in respect of the disposition of his or her estate.[35] It was said that the concept of moral duty came into use because there was at the time little guidance for trial judges under the original testator's family maintenance legislation, but that since then there had been a codification of the law in the form of paragraphs (a) to (o) of s.91(4) and one could not now apply that codification by using the "encrusted concept" of moral duty. One could not put a gloss on the criteria. Statements in High Court judgments were cited in support of the proposition that this Court must approach the text of the Act as primary.

53 I accept that last proposition as basic. But, as regards the obiter dictum in Singer v. Berghouse, Ormiston, J. in Collicoat v. McMillan and then this Court in Grey v. Harrison[36] had declined to follow it. Moreover, in a decision given after the reservation of judgment in this case and on which the parties were offered, but did not wish to exercise, the opportunity of making submissions, Vigolo v. Bostin[37], by a majority of three justices[38] to two the High Court after detailed analysis disagreed with the above-mentioned obiter dictum, Callinan and Heydon, JJ. stating that the concepts of a moral duty and a moral claim were not alien to, or in any way outside, the language of the relevant section. Vigolo, Singer v. Berghouse and the two Victorian cases mentioned above were decided on what might be called the traditional form of testator's family maintenance legislation, in which the critical provision posed the question whether "adequate provision [had been made] for the proper maintenance and support"[39] of the widow or another specified relative of the deceased. The present appeal turns on legislation which is different and poses as the first of three questions whether the deceased had "responsibility" to make provision (scil., out of her estate) for (the proper maintenance and support of) the appellant.[40] The word "responsibility" has strong connotations of moral duty, for, if there were a legal responsibility, resort to the Act would be unnecessary and no other description of responsibility suggests itself.[41] Accordingly, whilst recognising that it is now the current s.91 that must be interpreted, one may properly apply a view consonant with the majority decision in Vigolo all the more readily to s.91(4)(a).

54 The submission that in effect the question posed by s.91(4)(a) was to be answered simply by going through paragraphs (e) to (o) overlooks the open-ended

nature of paragraph (p). More importantly, that submission faces the incontrovertible point, as it seems to me, made by Nettle, J.A. in Blair v. Blair[42].

55 Having made the foregoing, largely introductory, observations, I content myself with saying that on the question of moral duty I concur in the reasons of Callaway, J.A.

Conclusion

56 The written submissions for the appellant advanced other, and particular, arguments not mentioned orally. I have also had regard to them. Even so, I have come to the conclusion that her Honour did not err in declining to determine that the deceased had responsibility to make provision for the appellant. Accordingly, I would dismiss the appeal.

57 I agree with Batt, J.A., for the reasons he has stated, that the appeal should be dismissed. I also agree with Callaway, J.A.'s observations as to the continued relevance of the concept of a moral duty informing the determination of the question whether a responsibility exists to make provision for a claimant.

[1] Lee v. Hearn [2002] VSC 208; (2002) 7 V.R. 595.

[2] [1997] 2 V.R. 359.

[3] Section 91(1) and (4)(a).

[4] That is not to say that moral duty to make provision, or the provision that a wise and just testator would have made, is irrelevant to the later questions posed by s.91(4).

[5] [2004] VSCA 149.

[6] At [41].

[7] A footnote referred to Collicoat v. McMillan [1999] 3 V.R. 803 at 815 per Ormiston, J.A.

[8] At 365.

[9] Cf. Grey v. Harrison at 366.

[10] [2002] WASCA 327; (2002) 27 W.A.R. 121.

[11] Inheritance (Family and Dependants Provision) Act 1972, s.7.

[12] See especially s.6.

[13] At 366.

[14] Also relevant is the rule of construction referred to by Gummow and Hayne, JJ. in Coleman v. Power [2004] HCA 39; (2004) 78 A.L.J.R. 1166 at 1199 [185] and the cases cited by their Honours at fn.146.

[15] [2003] VSC 318.

[16] At [38].

[17] Compare the Western Australian legislation referred to in [5] above.

[18] At 365-366.

[19] [2005] HCA 11; (2005) 79 A.L.J.R. 731.

[20] See also fn.14 above.

[21] [2002] VSC 208; (2002) 7 VR 595.

[22] Sub-sections (1), (3) and (4) of s.91 of the Act, other than paragraphs (e) to (o) of sub-s.(4), are set out in paragraph [2] of the judgment of Callaway, J.A. So far as material, the terms of those paragraphs are quoted or summarised later in those reasons.

[23] This reads "... any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship".

[24] (1988) 13 N.S.W.L.R. 241 at 244.

[25] The appellant drew attention to the absence of the word "always" from this expression in her Honour's reasons.

[26] This would, in any event, have reflected an obligation to him.

[27] [1980] EWCA Civ 4; [1981] Fam. 128 at 136B-139D.

[28] [2000] Ch. 662 at 670**.**

[29] At 137B.

[30] At 672D-E and 673E-H.

[31] This is s.1(3) of the Inheritance (Provision for Family and Dependants) Act 1975 (U.K.). It provided, for the purposes of a provision (s.1(1)(e)) that entitled a person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased to apply for an order for financial provision under the Act, that a person should be treated as maintained by the deceased, either wholly or partly, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person. It is true that some of the paragraphs of s.91(4) follow in varying degrees of closeness paragraphs in s.3(1) of the English Act and that paragraph (m) of s.91(4) begins with language found in s.1(1)(e) of the English Act and ends with language found in s.3(4) of that Act. But s.1(3) has not been copied.

[32] (1995) [1999] 3 V.R. 803 esp. at 819[45].

[33] [2004] VSCA 149 at [41]. This passage is cited by Callaway, J.A. in [4] above.

[34] [1994] HCA 40; (1994) 181 C.L.R. 201 at 209. The dictum was that their Honours doubted that the well-known statement of Salmond, J. in In re Allen; Allen v. Manchester (1921) 41 N.Z.L.R. 218 at 220-221 as to the moral duty of a just and wise father provided useful assistance in elucidating the statutory provisions and said it might well be understood as amounting to a gloss on them.

[35] Reference was made to Coombes v. Ward [2004] VSCA 51 at [12] per Chernov, J.A. But what was said there has to be read in the light of his Honour's statements in Blair v. Blair at [13], a judgment which was delivered after written submissions had been filed.

[36] [1997] 2 V.R. 359.

[37] [2005] HCA 11; (2005) 79 A.L.J.R. 731.

[38] At 736[21], per Gleeson, C.J., and at 752[121], per Callinan and Heydon, JJ.

[39] Emphasis supplied.

[40] The interpolations appearing within brackets derive from sub-s.(1) of s.91, to which one is led by para.(a) of sub-s.(4).

[41] If there were any uncertainty, recourse to the Attorney-General's Second Reading Speech on the Bill that introduced the new provisions would put the matter beyond doubt. The relevant portions of the speech are set out in the judgment of Winneke, P. in Coombes v. Ward at [2].

[42] At [41].